Thomas v. City of Richmond
ERROR to the Circuit Court for the Distirct of Virginia, on a suit upon certain notes issued during the rebellion by the city corporation of Richmond; the case being thus:
A statute Virginia passed in 1854, and reproduced in the code of 1860, thus enacts:
'SECTION 15. All members of any association, or company, that shall trade or deal as a bank, or carry on banking without authority of law, and their officers and agents therein, shall be confined in jail not more than six months, and fined not less than $100, nor more than $500.
'SECTION 16. Every free person,  who, with intent to create a circulating medium, shall issue, without authority of law, any note or other security, purporting that money or other thing of value is payable by, or on behalf of, such person, and every officer and agent of such person therein, shall be confined in jail,' &c.
'SECTION 17. If a free person pass or receive in payment any note or security, issued in violation of either of the two preceding sections, he shall be fined not less than $20 nor more than $100.'
'SECTION 19. In every case where a note of a less denomination than $5 is offered or issued as money, whether by a bank, corporation, or by individuals, the person, firm, or association of persons, corporation, or body politic so issuing, shall pay a fine of $10.'
By the charter of the city of Richmond,  that city 'may contract or be contracted with,' and is endowed generally with 'all the rights, franchises, capacities, and powers appertaining to municipal corporations.' The charter also provides that 'the council of the city may in the name and for the use of the city contract loans, and cause to be issued certificates of debt or bonds.' 
In this state of things the city of Richmond, in April, 1861, upon the breaking out of the rebellion, passed an ordinance for the issue by the city of $300,000, of corporation notes of $2, $1, 50 cents, and 25 cents; and the notes were accordingly issued; the city receiving in exchange the bank notes of the State then in circulation, between which and gold the difference at the time, compared with what it became subsequently, was small; five per cent. to ten per cent.
On the 19th March, 1862, and the 29th of the same month and year, a so-called 'legislature of Virginia,' the body being composed of representatives from parts of the State in rebellion against the Federal government, passed an act, by whose language the issue of the sort of notes in question was made valid, and the city obliged to redeem them.
In October, 1868, the rebellion being now suppressed, and the city refusing to pay the notes, one Thomas and others, holders of a quantity of them, brought assumpsit against the city of Richmond, in the court below, to recover certain ones which they held. The declaration contained a special count on the notes and the common money counts. The defendants pleaded the general issue and the statute of limitations. A jury being waived, the case was tried by the court, which found:
1st. That the notes were void when they were issued, because they were issued to circulate as currency, in violation of the law and policy of the State of Virginia, and,
2d. That the said notes were not made valid or recoverable by the acts of the 19th March, 1862, and 29th March, 1862, or either of them, because the said acts were passed by a legislature not recognized by the United States, and in aid of the rebellion.
The court accordingly gave judgment for the defendant. To review that judgment the case was brought here by the plaintiff.
Mr. Conway Robinson, for the plaintiff in error:
1. Under the powers which the city of Richmond had, by its charter, it might receive from those who would lend or advance it, the amount now in question, and might agree to refund it.
2. The amount has been actually received by the city in money or its equivalent. This money the city is under an obligation to refund, and there is a right of action for it as money lent or money received. 'It is not the policy of the law,' says Alderson, B., 'that he who has another man's money may keep it.' 
Whether the notes be valid or void, the holders may recover on the money counts.  Under the statute of 9 Anne, c. 16, a note for money lent to game with was void; yet an action was maintained for money lent under a parol contract.  In A. D. 1760, where the bill of exchange included 300, lent by the plaintiff to Sir John Bland, at the time and place of play, though by force of the bill the plaintiff could not recover anything (the statute making that utterly void), yet the King's Bench gave judgment for 300, under the common count for money lent. 
Whatever may be the structure of the statute of Virginia in respect to prohibition and penalty about small notes, it is not to be taken for granted that the legislature meant that contracts in contravention of it were to be void in the sense that they were not to be enforced in a court of justice. 
But if this were otherwise, prior enactments against small notes is repealed, by the act of March 19th, 1862, so far as in conflict therewith; and by the latter there is a release of forfeitures and penalties incurred before its passage; neither is there anything in Texas v. White,  which should prevent the latter act having full effect.
Mr. John A. Meredith, contra, for the city.
Mr. Justice BRADLEY delivered the opinion of the court.
^1 By the express provision of the enactment the word 'person' includes corporation.
^2 Chapter 54 of the code of 1849, p. 282, was followed by the act of March 30th, 1852 (Session Acts, p. 259), and the act of March 18th, 1861 (Ib. 153).
^3 Sessions Acts, 1852, p. 265, § 46; 1861, p. 169, § 75.
^4 Bousfield v. Wilson, 16 Meeson & Welsby, 188; and see Brooks v. Martin, 2 Wallace, 81.
^5 4 Robinson's Practices, ch. 87, 88, 89, p. 547, et seq.
^6 Barjeau v. Walmsley, 2 Strange, 1249.
^7 Robinson v. Bland, 2 Burrow, 1081; and see Sutton v. Toomer, 7 Barnwall & Cross (14 English Common Law), 416; Utica Insurance Company v. Scott, 19 Johnson, 6; Same plaintiff v. Kip, 8 Cowen, 24.
^8 Harris v. Runnels, 12 Howard, 84; Sortwell, &c. v. Hughes, 1 Curtis, 247.
^9 7 Wallace, 733.